United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
M. YANDLE UNITED STATES DISTRICT JUDGE
matter is before the Court for consideration of
Plaintiff's “Motion for Reconsideration of Imminent
Danger of Serious Physical Injury Exception” (Doc. 37),
filed June 29, 2018. For the reasons explained below, the
Motion is DENIED and this case shall be
dismissed with prejudice.
Plaintiff has accumulated more than 3 “strikes”
by having previous lawsuits dismissed as frivolous,
malicious, or for failure to state a claim, he is not
eligible to proceed in forma pauperis
(“IFP”) in this case unless he demonstrates that
he was under imminent danger of serious physical injury at
the time suit was filed. (Docs. 33, 35); 28 U.S.C. §
1915(g); see also Ciarpaglini v. Saini, 352 F.3d
328, 330 (7th Cir. 2003) (“the harm must be imminent or
occurring at the time the complaint is filed”). On
April 30, 2018, this Court concluded that Plaintiff had
failed to overcome the imminent danger hurdle, either at the
time he filed this case in January 2017, or when he filed his
First Amended Complaint (Doc. 9) on April 20, 2017. (Doc.
33). As a result, Plaintiff was ordered to pre-pay the
$400.00 filing fee by May 21, 2018 in order to proceed with
the case. (Doc. 33). He was also advised that he would be
required to file a Second Amended Complaint, but only if he
first paid the full filing fee.
requested, and was granted, an extension of time to July 5,
2018 to pay the filing fee. (Doc. 35). The Court also ordered
him to file a Second Amended Complaint by July 5, 2018,
if he also paid the filing fee. Plaintiff was warned
that if he failed to pay the $400.00 fee in full, this case
would be dismissed. (Docs. 33, 35).
date, Plaintiff has made no payments toward the $400.00
filing fee in this case. Instead, he filed his Second Amended
Complaint (Doc. 36) and soon thereafter filed the instant
motion, requesting that the Court to reconsider the denial of
IFP status. (Doc. 37). He asserts that the Second Amended
Complaint “clearly show[s] a meritable [sic] claim of
imminent danger of serious physical injury.” (Doc. 37,
district court has the ability to reconsider non-final
orders, both as an exercise of its own discretion, and
pursuant to Federal Rule of Civil Procedure 54(b). See
Terry v. Spencer, 888 F.3d 890, 893 (7th Cir. 2018);
Diaz v. Indian Head Inc., 686 F.2d 558, 562-63 (7th
Cir. 1982) (court may, sua sponte or on motion,
correct clear errors of fact or law in an interlocutory
order). In that vein and in order to evaluate Plaintiff's
contention that he has overcome the 3-strike bar, the Court
will examine the Second Amended Complaint.
Second Amended Complaint (Doc. 36)
Second Amended Complaint omits virtually all the
originally-named Defendants and names several new parties.
Specifically, it lists as Defendants Louis Shicker, a medical
official with the Illinois Department of Corrections
(“IDOC”); Dr. Shah (physician at Pinckneyville
Correctional Center); Christine Brown (Pinkneyville
Healthcare Administrator); John Baldwin and Salvadore Godinez
(current and former IDOC Directors, respectively); and
Pinckneyville Warden Jaimet. (Doc. 36, pp. 1-2).
makes the following allegations in the Second Amended
Complaint: from June 8, 2016 to the present, he has been
incarcerated at Pinkneyville. (Doc. 36, p. 6). Plaintiff was
previously incarcerated at the now-closed Tamms Supermax
Correctional Center for over 12 years. He claims that
Defendants Godinez, Baldwin, Shah, Shicker, and Brown have
subjected the class of former Tamms inmates to delays and
denial of medical treatment for their serious physical and
mental injuries caused or aggravated by their long-term
confinement in isolation at Tamms. Id. These
Defendants knew that Plaintiff has suffered from
hypertension, a hernia, memory loss, and military-related
PTSD, both before and after he was moved to Pinckneyville in
June 2016. They also knew that delays in providing medical
care to Plaintiff would aggravate or prolong his existing
injuries, and that depriving him assistance to prepare and
file timely grievances would prevent him from accessing the
courts. (Doc. 36, pp. 6-7).
concludes that before and after June 2016, all named
defendants created the conditions that cause him to be
deprived medical care and reasonable safety, by inadequate
and delayed medical treatment and obstruction of his access
to the grievance system and the courts, or knew about these
wrongs and did nothing to stop them. (Doc. 36, p. 7). As a
result, Plaintiff “suffered daily and constant hernia
pain, frequent daily uncontrolled and painful life
threatening hypertension, and was diagnosed with depression
in 2018.” Id. He further claims that each
defendant took these actions “in retaliation for
Plaintiff being in the class [presumably of former Tamms
inmates], under accusation of marijuana abuse.”
Id. Finally, Plaintiff asserts that he is under
imminent danger of serious physical injury. Id. He
seeks unspecified injunctive relief and money damages. (Doc.
36, p. 8).
initial matter, Plaintiff's allegation that he was denied
access to the grievance process or to the courts in no way
places him in imminent danger of serious physical injury. The
remaining allegations about Plaintiff's medical
conditions are too general and conclusory to establish that
he was in imminent danger of serious physical injury during
the relevant time period of January 2017 to approximately
April 2017. See Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (Complaint must plead sufficient factual content to
state a plausible claim); Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007); Brooks v.
Ross, 578 F.3d 574, 581 (7th Cir. 2009) (conclusory
legal statements are insufficient to state a claim). Simply
put, Plaintiff's conclusory claim that he is in imminent
danger, unsupported by factual allegations, is not enough to
overcome the 3-strike bar.
Court recruited counsel for Plaintiff in August 2017. (Doc.
21). Plaintiff's Counsel ably and exhaustively reviewed
Plaintiff's voluminous medical records with the help of a
consulting expert, and discussed the claims with Plaintiff.
At the conclusion of his detailed review, Counsel reported to
the Court that he would not file an amended complaint on
Plaintiff's behalf under the imminent danger exception
for the medical conditions included in the original
Complaint. Those conditions included the hypertension, memory
loss, hernia, and PTSD described by Plaintiff in his pro
se Second Amended Complaint. (Docs. 31, 36). Based on
this report and Plaintiff's First Amended Complaint, the
Court concluded that Plaintiff had not established that he
faced imminent danger of serious physical injury at the time
he filed this action or when he submitted the First Amended
Complaint. (Doc. 33).
in the Second Amended Complaint indicates that the Court
erred in denying IFP status to Plaintiff. Instead, the Second
Amended Complaint, like Plaintiff's earlier pleadings,
fails to set forth facts demonstrating that Plaintiff was in
imminent danger of serious physical ...